Problems with the Canada-U.S. Safe Third Country Agreement in the Trump Era

Several reports issued this week point to a rise in refugee claimants crossing into to New Brunswick. Refugees crossing into New Brunswick seeking asylum from the United States rose to 26 in 2016, more than all the years from 2011-2015 combined. The rise in refugee claimants incidentally increased as xenophobia began to rear its ugly head in the U.S. during the 2016 presidential campaign trail. In recent weeks, the Trump administration’s executive order to ban entry to all Syrian refugees and five Muslim majority countries is an attempt to enshrine this fear and dislike of immigrants into law.

A piece of immigration law has created difficulty for refugees seeking asylum from the U.S. into Canada. The Canada-U.S. Safe Third Country Agreement prevents most people who have been living in the U.S. from making a refugee claim in Canada because there is an assumption claimants are already living in a safe country. However, given the recent rise in Islamophobia and dislike of refugees in the U.S. this piece of legislation poses a problem for refugees who escaped to the U.S. but no longer feel safe living there and fear deportation.

The Trump administration ban attempts to do indirectly what it cannot do directly. Plain on its face, the ban is a ban against individuals from specific geographic areas, rather than followers of a specific faith. Since the Trump administration cannot say “no Muslims” they give a list of Muslim majority countries that has the effect of categorizing people according to their religion, and effectively preventing individuals of that faith from entering the U.S.

Either burdening the exercise of religion or imposing uniform religious practices, as president Trump’s order does, can give rise to a section 2(a) problem. If implemented in Canada, an executive order to ban entry to Muslim majority countries would be unconstitutional, as it has been in the U.S., because it would violate section 2(a) of the Charter. Implementing such a ban would compel refugees seeking asylum to move to a non-majority Muslim country in order to be eligible to apply for entry into the country. Furthermore, such an order would also compel potential applicants to ascribe to a belief other than Muslim. The effect of this order imposes religion on potential refugees, insisting refugees do not ascribe to the Muslim faith to enter the country.

Refugees accepted into Canada have Charter protection that works to eliminate the apparent racism of the new American government. This guarantee of civil liberties makes Canada an appealing respite for refugees fleeing danger from their home countries, and based on the latest increase of refugee claimants travelling into New Brunswick from south of the border, the U.S. as well. The unfortunate circumstance of the Canada-U.S. Safe Third Country Agreement is that the drafters did not anticipate the current U.S. context, limiting our government’s ability to accept refugees already living in North America.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.